Educational Company of Ireland Ltd and Another v Fitzpatrick and Others (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1963
• Date: 01 January 1963
• Docket Number: (1960. No. 330 P.)
• Court: Supreme Court

Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Others (No. 2).

THE EDUCATIONAL COMPANY OF IRELAND LIMITED and EDWARD HELY AND COMPANY LIMITED, Plaintiffs and Respondents

and

W. J. FITZPATRICK: JOHN NORGROVE: TADHG CROWLEY: JOSEPH DILLON: DARACH FITZPATRICK: JAMES COOGAN: THOMAS DEAN: PHILIP O'CONNOR: PATRICK ADAMS: ANTHONY MURTAGH: WILLIAM ROCK: JOHN H. GLYNN: THOMAS BYRNE: MARTIN O'HANLON: BERNARD McCANN: RAYMOND COLGAN: ERIC CRAIG, Defendants and Appellants (No. 2)

(1960. No. 330 P.)

Supreme Court.

Trade union - Constitution - Union and non-union employees - Strike by union employees - Effort to compel non-union employees to join union - Effort to compel employers to bring pressure on non-union employees to join union - Employers' premises picketed - Whether a "trade dispute" - Whether action of union protected by Trade Disputes Act, 1906 - Whether Trade Disputes Act, 1906, repugnant to the Constitution - Constitutional right of non-union employees to remain out of union - Constitution, Arts. 15, 4, 2; 40; 50 - Trade Disputes Act, 1906 (6 Edw. 7, c. 47), ss. 2 and 3.

The defendants, other than the first-named defendant, were employees of the plaintiffs and were members of a trade union of which the first-named defendant was the general secretary. There were nine employees of the plaintiffs who were not members of the union and the defendants wished them to become members. Their efforts to secure their joining proved unavailing and they then sought to bring pressure to bear on them by endeavouring to force the plaintiffs to compel them to join the union or to dismiss them if they did not do so. This the plaintiffs refused to do and the defendants went on strike and picketed the plaintiffs' premises. The plaintiffs thereupon commenced proceedings for an injunction restraining the picketing as being unlawful and contrary to the provisions of the Constitution. The defendants sought to justify the picketing by reason of the provisions of the Trade Disputes Act, 1906, authorising picketing in furtherance of a trade dispute.

Held by the Supreme Court (Kingsmill Moore, Ó Dálaigh ó dálaigh and Haugh JJ.; Maguire C.J. and Lavery J. dissenting), affirming Budd J., 1, that picketing amounts to watching and besetting and is illegal unless there is a trade dispute as defined by the Trade Disputes Act, 1906, in existence.

2, There was a trade dispute in existence in the present case.

3. The provisions of the Trade Disputes Act, authorising a trade dispute to coerce persons to join a union against their will, are void as being repugnant to the provisions of the Constitution.

4, The trade dispute in the present case must in view of the provisions of the Constitution be deemed not to be a trade dispute and so was not protected, and the picketing therefore was unlawful.

National Union of Railwaymen and Others v. Sullivan and Others [1947] I. R. 77 applied.

Witness Action.

The plaintiffs, the Educational Company of Ireland Limited and Edward Hely and Company Limited, brought an action in the High Court against the defendants, members of the Irish Union of Distributive Workers and Clerks. The first-named defendant, W. J. Fitzpatrick was sued as the general secretary of the Union and the remaining defendants were both employees of the plaintiff Companies and members of the said Union. In the general endorsement of claim the plaintiffs sought "1, an injunction restraining the defendants and each of them and their and each of their servants and agents from attending at or near the plaintiffs' premises at 86/89 Talbot Street in the City of Dublin and at Beresford Lane off Lower Gardiner Street in the City of Dublin for the purpose of watching or besetting or picketing the said premises and from disturbing the plaintiffs in the conduct of the business carried on by them in the said premises and from interfering with or attempting to interfere with the plaintiffs their employees or customers or any of them in any way which would be or tend to be a nuisance or annoyance to the plaintiffs them or any of them. 2, Damages. 3, Further and other relief. 4, Costs."

The facts appear fully in the report at p. 323 ante.

From the above judgment the defendants appealed to the Supreme Court (1). The grounds of the appeal were as follows:—1, that the learned High Court Judge misdirected himself and was wrong in law and in fact in holding:—

(a) that the rights of the nine non-union employees of the plaintiffs not to join the Irish Union of Distributive Workers and Clerks or any trade union unless they wished so to do were rights which are guaranteed or conferred by the Constitution.

(b) that the acts of picketing committed by the defendants and appellants were unconstitutional or constituted an unlawful interference with or an infringement of the constitutional

rights of the plaintiffs and respondents or of any of their said nine non-union employees.

(c) that the said acts of picketing constituted unlawful and unconstitutional pressure (i) to compel the said nine non-union employees of the plaintiffs and respondents to join the Irish Union of Distributive Workers and Clerks or (ii) to compel the plaintiffs and respondents to coerce the said nine non-union employees to join the said Union.

(d) that the defendants and appellants were under a constitutional duty (i) not to commit the acts of picketing complained of by the plaintiffs and appellants or (ii) not to bring pressure or exercise pressure upon the plaintiffs and appellants or their said nine non-union employees by such acts of picketing.

(e) that the provisions of the Trade Disputes Act, 1906, in so far as they purport to permit picketing in the circumstances of this case are inconsistent with the Constitution and of no effect.

(f) that the acts of picketing committed by the defendants and appellants were an unlawful attempt to compel the plaintiffs and respondents to interfere with or infringe the constitutional rights of others, namely, the said nine non-union employees.

(g) that a genuine trade dispute did not exist.

(h) that the defendants were seeking to deprive the nine non-union employees of constitutional rights similar to those asserted in the case of National Union of Railwaymen and Others v. Sullivan and Others(1) and that that authority rules this case.

(i) that the Trade Disputes Act, 1906, did not afford a defence and justification to the defendants and appellants for the acts of picketing committed by them.

(j) that the acts of the defendants were designed to compel the nine non-union employees to join one union only and thereby deprive them of freedom of choice.

(k) that there is no presumption of constitutionality in favour of the Trade Disputes Act, 1906, being a statute of the late United Kingdom contained as law by Article 50, 1, of the Constitution.

2, That the learned High Court Judge misdirected himself and was wrong in law in failing to hold (a) that a genuine trade dispute existed.

(b) that the defendants and appellants were entitled in exercising their constitutional rights (i) to refuse to continue

to work for the plaintiffs and respondents so long as they were required to work with the said nine non-union employees of the plaintiffs and respondents; (ii) to attend at or near the plaintiffs' and respondents' business premises for the purpose of peacefully obtaining or communicating information or for peacefully persuading any person from working in furtherance of a trade dispute.

(c) that the defendants and appellants were entitled to rely on the Trade Disputes Act, 1906, as a defence to justify the acts of picketing committed by them.

Cur. adv. vult.

Budd J. :—

The two plaintiff Companies in these proceedings, although separate entities in law, are inter-connected in the one business. The second-named Company is in fact a subsidiary of the first, which owns all the shares in the second Company. The first-named plaintiffs carry on business at 86/89 Talbot Street and the second-named Company's premises adjoin the first-named Company's premises in Beresford Lane. The plaintiffs are manufacturing stationers, printers, publishers and distributors of school books. There is a retail shop in the premises in Talbot Street.

The staff of the plaintiff Companies numbers 157 and of these forty-five are clerical workers. Prior to the happening of the matters giving rise to the present action seven different trade unions catered for the staffs of the Companies, but there were a number of the employees who did not belong to any trade union. Most of these belonged to what may be broadly described as the clerical staff of the business.

The defendants are members of the Irish Union of Distributive Workers and Clerks (hereinafter called "the Union") and the first-named defendant, W. J. Fitzpatrick, is the general secretary of the Union.

Having regard to certain of the allegations made by the plaintiffs it is necessary to outline the events leading to the present proceedings.

Prior to any members of the plaintiffs' staff becoming members of the Union some of the clerical staff had certain grievances with regard to wages, the method of computing overtime and the conditions under which they worked. The latter concerned such things as inadequate lighting, draughts and dust making things disagreeable where they worked, and toilet facilities. Very few complaints were actually made to the management and it would appear that there was not very strong feeling with regard to most of the complaints; but some grievances I am satisfied did exist. Two of the clerical staff apparently felt more strongly than others and they, Mr. Tadhg Crowley and Mr. Thomas Byrne, decided to join a union. Accordingly, in August, 1959, they approached Mr. Corish, secretary of the Dublin North City Branch of the Union and told him that they wished to join and to have the clerical staff of the house they worked in organised. They proceeded to...